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European Court rejects wide-spread infringement monitoring by ISPs

By | Published on Friday 25 November 2011


So there was an interesting if not especially surprising copyright ruling in the good old European Court Of Justice this week, which has an impact on the content industries’ efforts to force internet service providers to play a more active role in policing online piracy, though not as big an impact as some have suggested.

This all relates to a long running Belgian case which saw collecting society SABAM try to get the courts to force an ISP called Scarlet to filter out copyright infringing content being shared on its networks. At first instance the rights society got its injunction, but the net firm appealed claiming that fulfilling the obligations set out in the court ruling would involve carrying out “invisible and illegal” checks on net users’ online activity. This would breach various bits of European legislation, they argued, hence why the Belgian appeal courts bounced the matter up to the ECJ.

As previously reported, back in April an advisor to the ECJ, Advocate General Pedro Cruz Villalón, said that the Belgian court’s injunction did indeed breach the EU’s Charter Of Fundamental Rights. He noted: “The installation of the filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter”.

And, unsurprisingly, the ECJ this week took that advice and ruled that Scarlet cannot be forced to monitor its users’ web use for copyright infringement. It said in its ruling: “EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files. The filtering system would also be liable to infringe the fundamental rights of its [Scarlet’s] customers, namely their right to protection of their personal data and their right to receive or impart information”.

At first glance it looks like a pretty damning ruling for rights owners busy lobbying for new laws or applying for court injunctions to force ISPs to block access to copyright infringing websites, or to reduce or suspend the access of individuals who prolifically infringe. However, the ruling doesn’t really directly impact on those activities (and not just because Villalón’s advice in April provided a few get outs if national government’s are willing to introduce explicit laws on this matter).

The Sabam injunction application was always ambitious in that it basically says to ISPs, “you take complete responsibility for infringement, spy on every exchange of content, keep yourself abreast of who owns every bit of content, and block any exchange that looks dodgy”. It was a wide-ranging demand, that would be costly (and possibly technically as well as legally impossible) for ISPs to fulfil, and likely to hinder a lot of entirely legitimate web usage.

But most other efforts to force ISPs to play ball in policing online piracy have been much more narrowly defined, and usually involve the rights owners footing the bill for monitoring the net for copyright infringement, meaning such monitoring efforts are much more modest. Therefore this week’s ruling is unlikely to impact majorly on those efforts, though it will always provide a constraint should rights owners – buoyed by recent successes in the courts and law making communities – get a little more ambitious in their demands of net firms.

Commenting on the ruling for the global record industry, Frances Moore of IFPI told CMU: “This judgment will help in our ongoing efforts to protect creative content online. It confirms ISPs and other online intermediaries can be required to take measures against both existing and future online infringements and re-states the importance of protecting intellectual property as a fundamental right. In this particular case, the court rejected the content filtering measure presented by the Belgian court as too broad. However, this does not affect the forms of ISP cooperation that IFPI advocates including graduated response and the blocking of rogue websites, which are already being implemented in countries across Europe”.

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